Exhibit 10.2
Execution Version
LIMITED WAIVER AND SECOND
AMENDMENT TO THIRD AMENDED AND
RESTATED RECEIVABLES PURCHASE
AGREEMENT
LIMITED WAIVER AND SECOND
AMENDMENT TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (this
“Waiver and Amendment” ) is entered into
as of January 15, 2009, with respect to that certain Third
Amended and Restated Receivables Purchase Agreement, dated as of
April 18, 2008 (as heretofore amended, modified or
supplemented, the “RPA” ), by and among
(i) Yellow Roadway Receivables Funding Corporation, a Delaware
corporation (the “Seller” ),
(ii) YRC Worldwide Inc., a Delaware corporation (the
“Performance Guarantor” ),
(iii) JPMorgan Chase Bank, N.A., SunTrust Bank, Wachovia Bank,
National Association, and The Royal Bank of Scotland plc as
successor to ABN AMRO Bank, N.V. (each of the foregoing a
“Committed Purchaser” ), (iv) Falcon
Asset Securitization Company LLC, Three Pillars Funding LLC and
Amsterdam Funding Corporation (each of the foregoing, a
“Conduit” ), (v) YRC Assurance Co.
Ltd., an exempted company incorporated with limited liability under
the laws of Bermuda, individually and as agent for itself (together
with its successors and permitted assigns and in such latter
capacity, a “Co-Agent” ),
(vi) Wachovia Bank, National Association, as letter of credit
issuer (the “LC Issuer” ),
(vii) SunTrust Robinson Humphrey, Inc., Wachovia Bank,
National Association, The Royal Bank of Scotland plc (as successor
to ABN AMRO Bank, N.V.), and JPMorgan Chase Bank, N.A., as
“Co-Agents,” and (viii) JPMorgan
Chase Bank, N.A., as administrative agent for the Groups (together
with its successors and permitted assigns and in such capacity, the
“Administrative Agent” and together with
the Co-Agents, and their respective successors and permitted
assigns, the “Agents” ).
W I T N E S S E T
H:
WHEREAS,
the Performance Guarantor believes
that one or more Trigger Events may have occurred for the Test
Period ending on December 31, 2008 (such Servicer Default, the
“Trigger Event of Default” );
WHEREAS,
the Performance Guarantor has
informed the lenders party to the YRCW Credit Agreement (the
“Lenders” ) that, as a result of the
Borrowers’ (as defined in the YRCW Credit Agreement) failure
to comply with the provisions of Section 2.12(e) of the
YRCW Credit Agreement requiring a mandatory prepayment of the Term
Loans (as defined in the YRCW Credit Agreement) in an amount equal
to approximately $38,600,000, an Event of Default (as defined in
the YRCW Credit Agreement) has occurred under clause (a)
of Article VII thereof (such failure, the
“YRCW Payment Event of Default”
);
WHEREAS,
the Performance Guarantor has
requested that the Lenders waive any Default (as defined in the
YRCW Credit Agreement) or Event of Default which has arisen or may
arise under clause (d) of Article VII of the YRCW Credit
Agreement as a result of the events giving rise to the Trigger
Event of Default (the “Financial Covenant
Defaults” );
WHEREAS,
the Performance Guarantor has also
requested that the Lenders waive (i) any Default or Event of
Default which has arisen or may arise under (a) clauses
(c) or (d) of Article VII of the YRCW Credit Agreement as
a result of any
representations or warranties made
or deemed made by or on behalf of any Borrower or any Subsidiary in
connection with any Loan Document (as defined in the YRCW Credit
Agreement) or in any report, certificate or other document
furnished pursuant to or in connection with any Loan Document
proving to have been incorrect in any material respect when made or
deemed made solely as a result of (x) the YRCW Payment Event
of Default, (y) the Financial Covenant Defaults, or
(z) the Cross Default (as hereinafter defined), (all of the
foregoing Defaults or Events of Default being collectively referred
to as the “Representation Defaults” ),
and (b) clause (g) of Article VII of the YRCW Credit
Agreement by virtue of any Servicer Default arising under the RPA
by virtue of the YRCW Payment Event of Default, the Financial
Covenant Defaults, the Representation Defaults or the 3.04(b)
Waiver (as defined below) (the “Cross
Default” ), (ii) the provisions of
Section 3.07 of the YRCW Credit Agreement solely in connection
with (A) that certain Master Lease Agreement, dated as of
January 17, 2008, by and among RBS Asset Finance, any other
lessors or creditors thereunder from time to time party thereto and
certain of the Loan Parties (as defined in the YRCW Credit
Agreement), including all exhibits, schedules, annexes and
assignments in respect thereof (as amended, supplemented or
otherwise modified from time to time, collectively, the “RBS
Lease”) and (B) that certain Master Equipment Lease
Agreement, dated as of August 6, 2001, by and among Banc of
America Leasing & Capital, LLC, any other lessors or
creditors thereunder from time to time party thereto and certain of
the Loan Parties (as defined in the YRCW Credit Agreement),
including all exhibits, schedules, annexes and assignments in
respect thereof (as amended, supplemented or otherwise modified
from time to time, collectively, the “BofA Lease”) as a
result of any representations or warranties made or deemed made by
or on behalf of any Borrower or any Subsidiary in connection with
any Loan Document (as defined in the YRCW Credit Agreement) or in
any report, certificate or other document furnished pursuant to or
in connection with any Loan Document (the “3.07
Waiver”) and (iii) the provisions of
Section 3.04(b) of the YRCW Credit Agreement (other than any
representation or warranty of the provisions of
Section 3.04(b) of the YRCW Credit Agreement made after the
date of this Waiver and Amendment solely for the period commencing
on September 30, 2008) (the “3.04(b)
Waiver” and together with the YRCW Payment Event of
Default, the Financial Covenant Defaults, the Cross Default, the
3.07 Waiver and the Representation Defaults, the
“Credit Agreement Defaults” );
WHEREAS
, the Performance Guarantor believes
that certain Servicer Defaults may have arisen as a result of
representations or warranties, made or deemed made by or on behalf
of Seller in connection with the RPA or any Transaction Document or
in any report, certificate or other document furnished pursuant to
or in connection with the RPA or any Transaction Document, proving
to have been incorrect when made or deemed made or conditions to
any Credit Event not being satisfied solely as a result of the
Trigger Event of Default or the existence of a Default or Event of
Default pursuant to Section 7.1(h) of the RPA arising from the
Credit Agreement Defaults (collectively, the “Other
Servicer Defaults” and collectively with the Trigger
Event of Default, the “Specified Servicer
Defaults” );
2
WHEREAS,
the Performance Guarantor has
requested that the Required Co-Agents, on behalf of the Committed
Purchasers and the Conduits, waive the Specified Servicer Defaults;
and
WHEREAS,
the Required Co-Agents are willing
to waive the Specified Servicer Defaults only for the period and on
the terms and conditions hereinafter set forth;
NOW, THEREFORE,
in consideration of the premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms .
(a) Capitalized terms used herein
and not otherwise defined shall have the meanings attributed to
such terms i
